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March 19, 1982

Marilyn SEIDE, Ellen Dines, Carol P. Horn, William Hetzer, Charles H. King, Judith Lang and Carol O'Neill, as members of the Board of Visitors of Manhattan Children's Psychiatric Center, individually and on behalf of all patients at Manhattan Children's Psychiatric Center, Barbara J. Robinson, on behalf of her daughter, Barbara E. Robinson, individually and on behalf of all patients at Manhattan Children's Psychiatric Center, and Rose Lange, on behalf of her son, John Lange, individually and on behalf of all patients at Manhattan Psychiatric Center, Plaintiffs,
James A. PREVOST, as Commissioner of the New York State Office of Mental Health, Barbara Blum, as Commissioner of the New York State Department of Social Services, James A. Krauskopf, as Commissioner of the New York City Human Resources Administration, Robert Trobe, as Deputy Administrator of the New York City Human Resources Administration Office of Adult and Family Services, and Volunteers of America, Inc., Defendants, and Gilbert Watkins, on his own behalf and on behalf of all persons similarly situated, Intervenor-Defendant

The opinion of the court was delivered by: SWEET

This is a class action for injunctive relief pursuant to 42 U.S.C. § 1983 alleging deprivation of rights guaranteed by the Eighth and Fourteenth Amendments and by the New York Constitution, Article XVII, §§ 1, 3, 4, 6, New York Mental Hygiene Law §§ 7.07 and 33.03, and 14 N.Y.C.R.R. § 27.4(b). *fn1" Jurisdiction is based on 28 U.S.C. §§ 1343 and 1651.

The Parties

 Marilyn Seide and six other named plaintiffs (referred to collectively hereafter as "Seide") initiated this action as members of the Board of Visitors of the Manhattan Children's Psychiatric Center ("MCPC"), a State facility on Ward's Island, and on behalf of the children who are patients at MCPC. The Board is a body created by State law, New York Mental Hygiene Law, § 7.33, whose members are appointed by the Governor to advise the director of a State mental care facility concerning conditions, plans, programs and activities, and to make recommendations to the Governor, the Commissioner of the Office of Mental Health ("OMH"), and the Chair of the State Commission on the Quality of Care for the Mentally Disabled. Seide was joined by Barbara T. Robinson, the mother of a patient at MCPC and Rose Lange, the mother of a patient at the Manhattan Psychiatric Center ("MPC"), which is also on Ward's Island. Each parent sues on behalf of the patients at the respective facilities in which their children are being treated.

 The State defendants are James A. Prevost, the Commissioner of OMH, and Barbara Blum, the Commissioner of the New York State Department of Social Services ("DSS"). The City defendants are James A. Krauskopf, the Commissioner of the New York City Human Resources Administration ("HRA") and Robert Trobe, the Deputy Administration of HRA with responsibility for the Office of Adult and Family Services. The Volunteers of America, Inc. ("VOA") is a non-profit organization, which operates the Keener Building, a shelter for homeless men on Ward's Island, under contract with the City. Gilbert A. Watkins ("Watkins") intervened on behalf of himself and a class of homeless men who have or are receiving shelter at Keener.

 The Issues Presented

 The proceedings in this action, shortly to be described, have presented in the form of constitutional litigation a series of profoundly disturbing issues facing our society:

What is the extent of the responsibility of our State for mentally disturbed adolescents and adults, both committed and uncommitted?
What is the extent of the City's responsibility for homeless men and does the discharge of this responsibility respect those treated by the State as mentally disturbed?
Does the failure of the community to accept these groups in their midst create an issue which is appropriate for resolution in the federal court?

 The posing of these questions in lay terms etches the fundamentally political nature of this controversy, which has in addition its sociological, economic and ethnic aspects. The Supreme Court raised a similar question in O'Connor v. Donaldson, 422 U.S. 563, 575, 95 S. Ct. 2486, 2494, 45 L. Ed. 2d 396 (1975).

May the State fence in the harmless mentally ill solely to save its citizens from exposure to those whose ways are different? One might as well ask if the State, to avoid public unease, could incarcerate all who are physically unattractive or socially eccentric. Mere public intolerance or animosity cannot constitutionally justify deprivation of a person's physical liberty.

 The mentally disturbed and the homeless, although not incarcerated, have been rejected by the community of the City and are now pitted against one another in a contest for the isolated turf of Ward's Island. The State and City have supported the position of the homeless men under the compulsion of a consent agreement after a preliminary injunction was entered by the Supreme Court of the State Court of New York, County of New York, by the Honorable Richard Wallach. Callahan v. Carey, No. 42582/79 (Sup.Ct.N.Y.Co., Aug. 26, 1981) (the Callahan action).

 In this court, the plaintiffs seek a declaration of constitutional rights, which would include an injunction to terminate the existing and proposed use of the Keener Building as a shelter for homeless men, as well as the construction contracts let by the City with the required Board of Estimate approval to expand that facility. Of course, the issues thus presented must be dealt with in the traditional terms of standing, abstention, the definition of constitutional rights, expressed in findings of fact and conclusions of law. Before doing so, however, I am compelled to note the poignancy of the position of these populations, each to a very large extent the product of the swift, conflicting currents of our society, each without a political constituency to which they can refer their suffering, each driven to resort to the courts for enforcement of constitutional and state rights to achieve humane treatment at the hands of the society. While the impropriety of judges determining social policy is frequently sounded by those with loud trumpets, nonetheless, in the context of the needs of the homeless and the mentally disturbed, it is the court that must decide the issues brought before it and seek to achieve a just result and do so promptly. Despite the intricacy of the social issues involved, I conclude that here as in other areas, it is better to have a court resolution than none at all. To proceed with the necessary legal analysis without a recognition of social and political issues involved would be to ignore the obvious. What follows then is a description of the proceedings previous to this judgment, the findings of fact and the conclusions of law, which taken together, require that judgment be entered dismissing the complaint and denying the plaintiffs the relief which they have sought.


 Although not a part of these proceedings, consideration must be given to the Callahan action referred to above, a class action brought on behalf of homeless men seeking to achieve shelter for them. Skilled counsel for Watkins also represents the class plaintiffs in Callahan. Although invited, the plaintiffs declined to intervene in Callahan. On August 26, 1981, after preliminary proceedings and the active participation of the court and a number of high ranking State and City officials, a consent judgment was entered, requiring the City, among other things, to shelter all the homeless men seeking shelter. The Keener Building was one of the subjects of the consent judgment, but its capacity remained in dispute. A seven day mini-trial was held in which the capacity of Keener was determined and thereafter the capacity of 419 under normal usage and 450 under emergency conditions was inserted in the consent judgment.

 On October 7, 1981, the plaintiffs initiated this action and by order to show cause sought a temporary restraining order against the City and State defendants and VOA to enjoin the continued operation of the construction of an addition to the building, to require them to enclose the Keener Building with an opaque barrier, to provide a separate access roadway to the Keener Building, to provide separate private transportation to and from the Keener Building, and to enjoin defendants from providing the men with tokens for use on public buses. In addition, the plaintiffs sought to enjoin the State defendants from issuing any license to the City defendants and VOA to operate the Keener Building, and additionally, to require all defendants to station security officers at the MCPC and at the Keener Building.

 This court, having been assured that the parties would agree to interim measures to promote the physical security of the MCPC, denied the temporary restraining order, granted plaintiffs leave to renew if conditions warranted, and scheduled a hearing on November 2, 1981 to consider the application for a preliminary injunction, having ordered discovery on an expedited basis. On October 26 and 27, 1981, City and State defendants filed motions to dismiss the complaint. On November 2, 1981, VOA filed a motion for an order pursuant to Rule 21, Fed.R.Civ.P. to sever the claims against VOA. Additionally, on November 3, 1981, Watkins filed a motion to intervene on his own behalf and on behalf of homeless men sheltered at Keener. Additionally, Watkins answered and counterclaimed.

 These motions were heard on November 20, 1981. In an opinion dated November 24, 1981, Watkins' application to intervene was granted. In an order dated December 16, 1981, VOA's motion to sever was granted. This court reserved decision on the motion to dismiss. Additionally, Seide's motion for class certification was submitted on December 18, 1981, and decision was reserved. *fn2" The hearing on the preliminary injunction was consolidated with the trial on the merits in accordance with Rule 65(a)(2), Fed.R.Civ.P. and concluded on December 21, 1981 after 14 days of testimony during which 26 witnesses testified. *fn3" The post trial briefs were fully submitted on February 10, 1982.

 Upon the findings and conclusions set forth below the defendants' motion to dismiss and plaintiffs' motions for class certification, for the preliminary injunction, and for injunctive relief on the merits are hereby denied, and judgment will be entered dismissing the complaint. Watkins stipulated to severance of his counterclaims on December 21, 1981. *fn4"

 Findings of Fact

 The History and Physical Setting of the Institutions

 The MPC and the MCPC are psychiatric hospitals on Wards Island in New York County, operated as State facilities by OMH. Wards Island, located in the East River between Manhattan and Queens, is connected to Manhattan by a footbridge at East 103rd Street and by access road from the Triborough Bridge. The Island is owned by the City, which has, pursuant to statute, leased property on the island to the State. MPC and MCPC are on property which has been leased to the State, as is the Keener Building.

 Among the several buildings that comprise MPC are three residential facilities-Meyer, Dunlop, and Kirby-a rehabilitation center, and a staff residence. Additionally, there are areas for outdoor recreation, including a Roman Garden. The Kirby Building is in the process of becoming a forensic psychiatric hospital, a highly secure facility for individuals who are not able to stand trial or who are not guilty of criminal activity by reason of insanity. Presently, there is an alcoholism unit in the Kirby Building.

 A main building and four cottages comprise the MCPC. The main building houses the administrative offices and serves as an educational, treatment and indoor recreation center for both the in-patients and the day-patients. The four cottages are residences for the children who are grouped in terms of age and disability. Additionally, the MCPC has outdoor recreation areas and shares some of the recreational facilities at the MPC.

 Since December 1979, the Keener Building, which is located approximately ninety yards across the street from the MCPC at the southern tip of Ward's Island, has operated as a shelter for homeless men pursuant to an agreement between the State and the City. Prior to this date, the Keener Building had been operated at different intervals as a reception center for mentally retarded children and from 1963 to 1971, as a treatment center for drug addicted persons. The City is presently expanding the facility to accommodate up to 950 persons, including 100 staff. There will be dining facilities and in-take facilities in the new building at a cost of $ 6.8 million dollars. The expanded building is planned to be completed by April or May of 1982. *fn5"

 The costs for the expansion were presented to the Board of Estimate on July 23, 1981, and opposed by several of the plaintiffs and former counsel for plaintiffs, Mr. Horn. The expansion was approved by vote of 8 to 1. As of October 7, 1981, building was well under way, and contract commitments had been made totaling some.$ 2.3 million. In addition, all of the costs of materials were committed.

 The State has requested a security fence around the entire Keener complex, a visual barrier, a greenery screen, a separate transportation system for the homeless men and a separate access road. The City has already agreed to all of these proposals except the separate access road, which is under discussion. A separate transportation system was set up in early December. The Keener complex will be enclosed by two security fences, with 1 inch diamond mesh, curved at the top. There will be an opaque covering surrounding one of the fences to limit visual perception from the MCPC.

 The Character and Treatment of the Populations Involved

 An in-patient population of the MPC is about 1,300 with an out-patient population of about 2,000 and a staff of 1,100. The patients include those who are mentally disturbed individuals as well as mentally retarded persons, those voluntarily admitted as well as those involuntarily committed. Most of the patients come from Manhattan. Some need long-term care, and some have acute treatment needs.

 As is customary in State psychiatric hospitals, MCP provides a variety of treatment programs-alcoholism, retardation, in-patient, out-patient and the planned forensic unit. Each unit is maintained separately but coexists in the vicinity of other programs, some sharing common facilities and recreation areas. Depending on the patients' needs and progress, grounds privileges and furloughs are available as is out-patient treatment and deinstitutionalization. Expert testimony established that psychiatric patients as a group have a history of more violent outbursts than the general population.

 There are approximately 273 persons who staff the MCPC and provide services for some 80 in-patients and about 55 day-patients all of whom are below the age of 19. The patients are primarily from Manhattan. Although most children are voluntarily admitted by their parents, some are committed involuntarily. The Special Treatment Team ("STT") in Cottage 1 houses the most seriously disturbed children, who receive instruction and treatment within the cottage. The children in the other cottages attend classes in the main building and may interact with the day-patients. Many children who attend school at MCPC are unable to function in the normal school setting. ...

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